§ 2.338 Settlement of issues; alternative dispute resolution.

The fair and reasonable settlement and resolution of issues proposed
for litigation in proceedings subject to this part is encouraged. Parties
are encouraged to employ various methods of alternate dispute resolution
to address the issues without the need for litigation in proceedings subject
to this part.

(a) Availability. The parties shall have the opportunity to submit a
proposed settlement of some or all issues to the Commission or presiding
officer, as appropriate, or submit a request for alternative dispute resolution
under paragraph (b) of this section.

(b) Settlement judge; alternative dispute resolution. (1) The presiding
officer, upon joint motion of the parties, may request the Chief Administrative
Judge to appoint a Settlement Judge to conduct settlement negotiations
or remit the proceeding to alternative dispute resolution as the Commission
may provide or to which the parties may agree. The order appointing the
Settlement Judge may confine the scope of settlement negotiations to specified
issues. The order must direct the Settlement Judge to report to the Chief
Administrative Judge at specified time periods.

(2) If a Settlement Judge is appointed, the Settlement Judge shall:

(i) Convene and preside over conferences and settlement negotiations
between the parties and assess the practicalities of a potential settlement;

(ii) Report to the Chief Administrative Judge describing the status of
the settlement negotiations and recommending the termination or continuation
of the settlement negotiations; and

(iii) Not discuss the merits of the case with the Chief Administrative
Judge or any other person, or appear as a witness in the case.

(3) Settlement negotiations conducted by the Settlement Judge terminate
upon the order of the Chief Administrative Judge issued after consultation
with the Settlement Judge.

(4) No decision concerning the appointment of a Settlement Judge or the
termination of the settlement negotiation is subject to review by, appeal
to, or rehearing by the presiding officer or the Commission.

(c) Availability of parties' attorneys or representatives. The presiding
officer (or Settlement Judge) may require that the attorney or other representative
who is expected to try the case for each party be present and that the
parties, or agents having full settlement authority, also be present or
available by telephone.

(d) Admissibility in subsequent hearing. No evidence, statements, or
conduct in settlement negotiations under this section will be admissible
in any subsequent hearing, except by stipulation of the parties. Documents
disclosed may not be used in litigation unless obtained through appropriate
discovery or subpoena.

(e) Imposition of additional requirements. The presiding officer (or
Settlement Judge) may impose on the parties and persons having an interest
in the outcome of the adjudication additional requirements as the presiding
officer (or Settlement Judge) finds necessary for the fair and efficient
resolution of the case.

(f) Effects of ongoing settlement negotiations. The conduct of settlement
negotiations does not divest the presiding officer of jurisdiction and
does not automatically stay the proceeding. A hearing must not be unduly
delayed because of the conduct of settlement negotiations.

(g) Form. A settlement must be in the form of a proposed settlement agreement,
a consent order, and a motion for its entry that includes the reasons
why it should be accepted. It must be signed by the consenting parties
or their authorized representatives.

(h) Content of settlement agreement. The proposed settlement agreement
must contain the following:

(1) An admission of all jurisdictional facts;

(2) An express waiver of further procedural steps before the presiding
officer, of any right to challenge or contest the validity of the order
entered into in accordance with the agreement, and of all rights to seek
judicial review or otherwise to contest the validity of the consent order;

(3) A statement that the order has the same force and effect as an order
made after full hearing; and

(4) A statement that matters identified in the agreement, required to
be adjudicated have been resolved by the proposed settlement agreement
and consent order.

(i) Approval of settlement agreement. Following issuance of a notice
of hearing, a settlement must be approved by the presiding officer or
the Commission as appropriate in order to be binding in the proceeding.
The presiding officer or Commission may order the adjudication of the
issues that the presiding officer or Commission finds is required in the
public interest to dispose of the proceeding. In an enforcement proceeding
under subpart B of this part, the presiding officer shall accord due weight
to the position of the NRC staff when reviewing the settlement. If approved,
the terms of the settlement or compromise must be embodied in a decision
or order. Settlements approved by a presiding officer are subject to the
Commission's review in accordance with § 2.341.